Contracts Commons^™

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Duty And Consequence: A Non-Conflating Theory Of Promise And Contract, Jeffrey Marc Lipshaw

ExpressO

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our …

Contingency And Contracts: A Philosophy Of Complex Business Transactions, Jeffrey Marc Lipshaw

ExpressO

In this article, I argue that the prevailing literature on contract theory does not adequately address the way real-world lawyers address uncertainty in complex business transactions. I attribute this to the constraints imposed by thinking in legal models, the dominant tendency to turn to economics for analysis and normative prescription, and the focus on adjudicative issues of hindsight interpretation. Commercial uncertainty, and the law’s response to it, is only a subset of the broader philosophical issue of contingency. As an alternative to prevailing thought, I trace philosophical approaches to contingency, utility and morality that have come down to us since …

The Bewitchment Of Intelligence: Language And Ex Post Illusions Of Intention, Jeffrey Marc Lipshaw

ExpressO

Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers’ game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

ExpressO

No abstract provided.

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

A Goode Judge Is Hard To Find: An Essay On Legal Realism And Law School Casebooks, Thomas Hayes

Journal of Legal Education

No abstract provided.

The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley

San Diego International Law Journal

This Article seeks to illumine the legal nature of the letter of credit instrument, and catalogue the various sources of law and rules that can govern it; and, by doing so, render a service to those who must quickly come to grips with letter of credit law. The Article is in two parts. The first part examines the legal nature of the letter of credit by looking at its definition, operation, and history and by comparing it with negotiable instruments and contracts. The second part considers the rules, customs, and regulations governing letters of credit and introduces the two fundamental …

Teaching Wesley Hohfeld's Theory Of Legal Relations, Curtis Nyquist

Journal of Legal Education

No abstract provided.

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.

Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks

Articles

The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …

Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel

Scholarly Works

A complete and open embrace of the pure version of the doctrine as enunciated in Judge Keeton's famous article--which expressly provides for finding coverage consistent with the objectively reasonable expectations of the policyholder even where those expectations are contradicted by apparently clear policy language --is viewed by much of the legal and political mainstream as too inconsistent with the prevailing American paradigm of judicial restraint, strict construction of disputed texts, and minimal government involvement in market activity. Some of this resistance to reasonable expectations is the product of an unrealistic reification of the prevailing American politico-legal philosophy of judicial restraint. …

The Idea Of A Public Basis Of Justification For Contract, Peter Benson

Osgoode Hall Law Journal

The essay has two main objects. The first is to take up and to develop certain of the difficulties that Professor Trebilcock finds with autonomy and welfare-based theories of contract law. The essay reaches the conclusion that efficiency, autonomy, and welfare approaches suffer from fundamental and yet qualitatively different kinds of defects. Moreover, in the course of its critical examination of these theories, the essay introduces and makes explicit an ideal of justification which The Limits of Freedom of Contract only implicitly assumes-an ideal of justification which the essay, following the recent work of Rawls, calls a "public basis of …

Critiques Of The Limits Of Freedom Of Contract: A Rejoinder, Michael J. Trebilcock

Osgoode Hall Law Journal

This rejoinder to the foregoing critiques of the author's book, The Limits of Freedom of Contract, focuses on several themes: a) what range of contractually-related issues do courts possess the requisite institutional competence to address? b) whether problematic normative issues in contract law are amenable to rational analysis and at least provisional resolution, or are inherently indeterminate, contingent, and political? c) what the value of individual autonomy implies in terms of the type of transactions parties should be permitted to engage in? d) whether an "internal" rather than consequentialist theory of contract law is conceivable? and e) whether autonomy values …

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …

The Relevance Of Time To The Relationship Between The Philosophy Of The Limit And Systems Theory, Drucilla Cornell

Cardozo Law Review

No abstract provided.

Sociological Theory In The Absence Of People: The Limits Of Luhmann’S Systems Theory, Alan Wolfe

Cardozo Law Review

No abstract provided.

Contract Versus Contractarianism: The Regulatory Role Of Contract Law, Jean Braucher

Washington and Lee Law Review

No abstract provided.

"Le Hors De Texte, C'Est Moi" - The Politics Of Form And The Domestication Of Deconstruction, Pierre Schlag

Cardozo Law Review

No abstract provided.

Professor Weinrib's Coherence, Alan Brudner

Cardozo Law Review

No abstract provided.

Contracts For Cotton To Arrive: The Case Of The Two Ships Peerless, A. W. Brian Simpson

Cardozo Law Review

No abstract provided.

Hegel And Modern Contract Theory: A Comment On Benson And Rosenfeld, Jay M. Feinman

Cardozo Law Review

No abstract provided.

The Interpretation Of Contracts Governing Corporate Debt Relationships, William W. Bratton Jr.

Cardozo Law Review

No abstract provided.

Contract And Uncertainty: The Reformation Of An International Business Agreement, Joan A. Lipton

Cardozo Law Review

No abstract provided.

Old Kontract Principles And Karl's New Kode: An Essay On The Jurisprudence Of Our New Commercial Law, Eugene F. Mooney

Villanova Law Review (1956 - )

No abstract provided.

Book Reviews, Daniel H. Pollitt, Dale W. Broeder, George M. Joseph, Robert E. Mathews, W. H. Howery, Brendan F. Brown, Ilmar Tammelo, W. Paul Gormley, Chester James Antieau, Albert I. Kegan, Delmar Karlen, Albert A. Ehrenzweig

Journal of Legal Education

No abstract provided.